Friday, February 17, 2006

Does Dick Cheney Have the Authority to Declassify?

Dick Cheney says he does:

[BRIT HUME]: Let me ask you another question. Is it your view that a Vice President has the authority to declassify information?

THE VICE PRESIDENT: There is an executive order to that effect.

[HUME]: There is.


[HUME]: Have you done it?

THE VICE PRESIDENT: Well, I've certainly advocated declassification and participated in declassification decisions. The executive order --

[HUME]: You ever done it unilaterally?

THE VICE PRESIDENT: I don't want to get into that. There is an executive order that specifies who has classification authority, and obviously focuses first and foremost on the President, but also includes the Vice President.

But Steve Clemons says, Not so fast. In 2003, Pres. Bush revised Executive Order 12958, prepared in 1995 in Clinton's administration. The new Executive Order, 13292, gives the vice-president substantially more authority to classify information. In fact, Clemons writes:

In [the] 1995 Executive Order, the VICE PRESIDENT is mentioned only one time -- and only in such a way that the automatic, 25-year declassification of historically important documents can be preempted if declassification would "impair the ability of responsible United States Government officials to protect the President, the Vice President, and other individuals."

Now, let's move to the March 25, 2003 Executive Order by President Bush, No. 13292, that amends President Clinton's Executive Order on National Security Information.

The Vice President's "presence" in the Executive Order increased by 1000%. Instead of just one mention in the Executive Order, Cheney's office is referred to eleven times.

This hyping of Cheney's and his staff's role in the management of secrets is a further testament to the historically unique power that Cheney's vice-presidency amassed in the period after 9/11/2001.

Briefly, in the amended Executive Order, Dick Cheney and presumably future VPs are affected by this National Security Information presidential order in the following ways:

1. The Vice President, in the context of his duties, has the authority to "classify" information;

2. The Vice President, in the context of his duties, can give a "top secret" classification to information;

3. The Vice President can give a "secret" or "confidential" classification to information;

4. Like in the previous 1995 Executive Order, the automatic, 25-year declassification of national security information can be preempted if it would impair the ability to "protect" the Vice President from physical harm;

5. Mandatory declassification review (by a designated process) is required of information originating from the Vice President;

6. Mandatory declassification review is required from the Vice President's staff;

7. Access to certain national security information can be provided to individuals who occupied policy-making positions appointed by the Vice President (or President of course)

8. Rules barring access to certain classified national security information will be waived for the Vice President;

9. Waivers to rules of access to classified national security information will only apply to Vice Presidential appointees in areas of their policy work while working as an Executive Branch appointee;

10. This mention of the VP only relates to the above line saying that access to classified national security information will only be provided to Presdidential and Vice Presidential appointees in the area of his or her policy work that was done during the tenure of that respective President or Vice President;

11. "'Original classification authority' means an individual authorized in writing, either by the President, the Vice President in the performance of executive duties. ..." This is a definitional item in the Executive Order.

So it's clear that the veep has the authority to classify information, but:

There is NOTHING HERE that indicates that the Vice President has any embedded authority to be a declassification machine unto himself.

Okay, but when has not having the authority ever stopped anyone in the Bush administration? What's truly frightening about this is that Pres. Bush is giving -- and has been giving, since day one -- huge amounts of power to the vice-president. That shouldn't be the vice-president's role. The vice-president should not be making energy policy, especially not behind closed doors, or broad foreign policy decisions, or unilaterally choosing which Top Secret documents are going to be declassified so they can be leaked to the press, via Cheney's chief of staff, to support the claim that a country the Bush administration already has firm plans to invade has weapons of mass destruction.

It's not the idea, in and of itself, that the vice-president can decide to declassify information that I find so alarming. It's the idea that the president has allowed one man, who was not directly elected (although neither was the president himself, for that matter) to make decisions that will affect the lives of Americans and the fate of the world. And it's the idea that this administration -- and Bush and Cheney in particular -- think that they can fashion the law in whatever way is necessary to implement their chosen policies.

David Ignatius of the Washington Post called it an arrogance of power; and he's right. I also share his memories of Richard Nixon, who had very similar dangerously deluded notions of presidential power. Anyone who mocks comparisons between this administration and Richard Nixon's should read the book I'm finishing up now: Secrets: A Memoir of Vietnam and the Pentagon Papers. I'll have more to say about this book (written by Daniel Ellsberg) when I'm done with it. For now, I'll just say that the parallels between what was going on in the Oval Office and the Pentagon between 1969 and 1971 (when the NYT published the Pentagon Papers) and what's been going on in those same places between Sept. 12, 2001, and today, are striking enough to be downright scary.

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